PROPERTY D SLIDES

1. PROPERTY D SLIDES 4-14-14

2. Monday April 14Music to Accompany Tim’s Party in Rev Prob 7A:Brad Paisley, Time Well Wasted (2005)featuring “Alcohol” No Class or Dean’s Fellow Tomorrow

3. Chapter 6: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity (Cont’d) • By Prescription

4. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  E-by-I Raised: Pipes in Use Before O Sells Separate Units. E-by-N Raised: Split Creates “Landlocked” Lot b/c Sewage Disposal Must Cross Anther Lot

5. Easement-by-Implication &Easement-by-Necessity: Sewage Pipe Hypothetical Notice Issues • What constitutes notice of underground pipes? • Actual Knowledge • Courts tend to be generous re Inquiry Notice • From any visible element (pipe ends; manhole covers) (See Kirmacited in Williams Island @ P854) • From need for utility service + no visible access

6. Easement-by-Implication &Easement-by-Necessity: Sewage Pipe Hypothetical Necessity Issues • Is utilities access “Necessary”?: Cases split • Lot not worthless or landlocked (re physical access); usually possible to get utility service at some expense. • BUT can’t use for many purposes without new expensive utility connection

7. Easement-by-Implication &Easement-by-Necessity: Sewage Pipe Hypothetical Necessity Issues • Is utilities access “Necessary”?: Cases split • Assuming some access to utilities is necessary, how expensive must alternatives be to meet tests? • Drill through mountain ridge? • Policy: Very inefficient to reroute utility service if existing pipes or wires (cf. Marcus Cable) Rev. Prob. 6H: We’ll Return to Sewage Pipe Hypo & Easements-by-Implication

8. Chapter 6: Easements • Overview & Terminology • Interpreting Language • Easement v. Fee • Scope of Express Easements • Implied Easements • By Estoppel • By Implication and/or Necessity • By Prescription

9. Easement-by-PrescriptionGenerally • Easement Created by Particular Use of Another’s Land for Adverse Possession Period • Need to Show Adverse Possession Elements (with Some Variations in Some States) • We’ll Look at Elements Individually

10. Easement-by-PrescriptionElements • [Actual] Use of Pathway • Open & Notorious • Continuous • Exclusive (Some Jurisdictions) • Adverse/Hostile

11. REDWOOD: DQ 6.08-6.11 REDWOODS & FERNS

12. Easement-by-PrescriptionRedwood: [Actual] Use • Not listed as separate element in MacDonald but there must be some kind of use • Usually Straightforward; Use of, e.g., Path or Driveway • Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P876-77) • MacDonald (DQ6.09): What Meets?

13. Easement-by-PrescriptionRedwood: [Actual] Use • Not listed as separate element in MacDonald but there must be some kind of use • Usually Straightforward; Use of, e.g., Path or Driveway • Sometimes Q of Whether Use is Sufficient to Constitute “Possession” and Trigger AP Claim Instead of E-by-P (See Note 3 P876-77) • MacDonald (DQ6.09): Golf Shots & Retrieval (Very Atypical!!!)

14. Easement-by-PrescriptionRedwood: Open & Notorious & DQ6.10 (See P877) • Some States: Traditional Definition of O&N • Use of Path or Driveway Almost Certainly Meets • Underground Utilities (Sewage Pipe Hypo) • Hard to Meet O&N (Like Marengo Caves) • Could Analyze Like Notice for E-by-I or E-by-N

15. Easement-by-PrescriptionRedwood: Open & Notorious & DQ6.10 (See P877) • Some States: Traditional Definition of O&N • Some States: Require that Servient Owner Have Actual Knowledge (e.g., MacDonald) • Policy Concerns Similar to Border Disputes; Don’t Necessarily Need O in Possession to Monitor Closely • Evidence of Actual Knowledge in MacDonald (DQ6.10): Building Restrictions in Agreement Designed to Allow Continued Use of Area in Q

16. Easement-by-PrescriptionRedwood: Continuous (See P877) • Obviously Doesn’t Need to be 24/7 for Whole SoL Period • Could Just Be Use “Throughout” Period • Might Ask re Normal Utilization of That Type of Easement • Can be Seasonal Use like Adverse Possession in Ray • Evidence in MacDonald (DQ6.09)?

17. Easement-by-PrescriptionRedwood: Continuous (See P877) • Obviously Doesn’t Need to be 24/7 for Whole Statutory Period • Could just be use “throughout” period • Might Ask re Normal Utilization of That Type of Easement • Can be Seasonal Use like Adverse Possession in Ray • Evidence in MacDonald (DQ6.09): Golf Course in Use Through Whole Period & Steady # of Users End Up on Land in Q

18. Easement-by-PrescriptionRedwood: Exclusive (See P877-78) • Many Jurisdictions Don’t Require • Sensible: Nature of Easement is Non-Exclusive Use • MacDonald doesn’t list as element • Some: Means Exclusive of Everyone but Owner • Some (TX): Shared w Owner  Presumption of Permissive • Hard to overcome: • Need evidence that O didn’t give permission but didn’t interfere)

19. Easement-by-PrescriptionAdverse/Hostile & Presumptions • General Difficulty: Reasonable to Assume Permission If: • O in Possession of Servient Estate AND • Use is Open & Notorious? • Presumptions frequently decide cases because hard to disprove. • Shared use with the owner (e.g., of a driveway) presumed permissive (Texas) How do you disprove? • Continuous use for AP Period presumed adverse (MacDonald). How do you disprove?

20. Easement-by-PrescriptionAdverse/Hostile & Presumptions 3. Policy Q: What do you do with case like MacDonald or Dupont where use continues for a long time and then servient owner suddenly says no? (plausible to say permissive) Could create hybrid of prescription & estoppel: if use goes on long enough, servient owner can’t change mind.

21. Easement-by-PrescriptionRedwood: Policy Questions DQ6.08. To what extent do the rationales for AP also support E-by-P? • Clearly protect people and the legal system from being burdened with “stale” claims • Ideas re Rest? (a) reward beneficial use of land (b) punish sleeping owners (c) recognize psychic connection to the land • For you to consider & use to help decide close Qs.

22. SEWAGE PIPE HYPOTHETICAL: 6 5 4 3 2 1 To City Sewer  E-by-P Raised: Use of Pipes by More Distant Users for Adv. Poss. Period; Likely Qs re Open & Notorious, Exclusive

23. Implied Easements GenerallyRedwood: DQ6.11 “The best justifications for granting an implied easement are reliance and need. Thus, if claimants cannot meet the elements of an Easement by Estoppel or of an Easement by Necessity, they should not be able to get a Prescriptive Easement unless they pay market value for it.” Do you agree?

24. Previously in Property D Express Easements Easement v. Fee (Text & Context Arguments) Scope of Positive Easements (Text & Context Arguments) 3 Blackletter Tests Railroad Easements  Recreational Trails Changes in Technology (Electric Wires  Cable Wires) Review Problems 6B & 6F Scope of Negative Easements (Easy Because Total)

25. Previously in Property D Implied Easements Four Kinds: Focus & Legal Requirements Easements-by-Estoppel Easements-by-Implication Easements-by-Necessity Easements-by-Prescription Sewage Pipe Hypothetical (Showing Overlap, Differences, Specific Concerns)

26. Monday Pop Culture Moment PROPERTY D: 4/14 150 Years Ago This Spring: Ulysses S. Grant Takes Command of the Army of the Potomac The Bloody Mathematics of the Civil War: From Shiloh to The Wilderness

27. Monday Pop Culture Moment PROPERTY D: 4/14 McLELLAN v. GRANT A General Metaphor for the Next Two Weeks

28. Easement-by-Implication Review Problem 6H Quick Summary of Facts • Webers own lot with 4 guest cottages connected to one set of pipes running one mile west, then across edge of lot to connect to municipal water & sewer lines. • S purchases western part of lot including westernmost guest cottage. • After the purchase, pipes from other 3 cottages (and connecting to S’s cottage and municipal water/sewer) continue to run under S’s part of lot.

29. SEWAGE PIPE HYPOTHETICAL  REV. PROB. 6H GC GC GC Ws S GC To City Sewer/Water  E-by-I Raised: Pipes in Use Before Ws Sell Western Part to S

30. Easement-by-Implication Review Problem 6H Prepare Arguments for Each Party re • One parcel is split in two: YES • Prior Use (“Quasi-Easement”): YES • Intent to continue prior use? • *Apparent, visible or reasonably discoverable? • *Some degree of necessity? We’ll Do in Reverse Order

31. YELLOWSTONE (Rev. Prob. 6H) GIANT GEYSER

32. Easement-by-ImplicationReview Problem 6H (Yellowstone) • Sufficient Necessity • Extent of Necessity at Time of Split? • Relevant Considerations? • Sufficient to Meet Relevant Test? • Arguments If “Reasonable Necessity”? • Arguments If “Strict Necessity”? • Why Might This Be Test?

33. Easement-by-Implication Review Problem 6H (Yellowstone) • Apparent, Visible or Reasonably Discoverable (Notice) • Actual Knowledge by S: Evidence/Arguments? • Inquiry Notice to S: Evidence/Arguments?

34. Easement-by-Implication Review Problem 6H (Yellowstone) Intent to Continue Prior Use (at Time of Split) • If both aware of pipes, probably intended (or atty S likely would have addressed before sale) • If Webers aware but no notice to S, • Maybe punish Ws by saying no • Ws might claim they reasonably believed S knew • If neither party aware? • Hard to say intent as a factual matter • BUT Court might be reluctant to punish Ws for mutual mistake.

35. Divided Rights in the Same Piece of Land:Two Sets of Property Rights to Consider Chapter 6 Easements • Holder of Easement • Owner of Underlying Land (Servient Tenement) Chapter 7 Landlord-Tenant • Leaseholder (Term of Years) • Landlord Holds Reversion)

36. Divided Rights in the Same Piece of LandParadigm is Contractual, BUT -- Overlay of Rules that Augment & Sometimes Replace -- Some Default Rules; Some Non-Waivable Rights Easements Written Document Creating Express Easement  Implied Easements Landlord-Tenant Written Lease  Implied & Statutory Terms

37. Divided Rights in the Same Piece of LandSkills Focus Different for Each Easements Working with Stated & Unstated Facts Landlord-Tenant Working with Statutory Provisions

38. Review Problem 7A: Tim’s PartyBISCAYNE(for L) & SHENANDOAH (for T)

39. Review Problem 7A: Tim’s PartyBISCAYNE(for L) & SHENANDOAH (for T) • Tim = Tenant & College Student • Holds Big Party at Apt.  Noise • Several Neighbors Call Police • Police Arrest 2 of T’s Friends (Drunk/Disorderly) • Party Continues w/out Further Complaint • No Prior Violations of Lease or Statute

40. Review Problem 7A: Tim’s PartyBISCAYNE(for L) & SHENANDOAH (for T) • Tim = Tenant & College Student • Holds Big Party at Apt.  Noise; Police Arrest 2 Friends • No Prior Violations of Lease or Statute • Assume Violation of Fl. Stat.: • 83.52. Tenant's obligation to maintain dwelling unit. The tenant at all times during the tenancy shall … (7) Conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that does not unreasonably disturb the tenant's neighbors or constitute a breach of the peace. Can Linda (Landlord) Evict Tim for the Party?

41. Review Problem 7A Example of Common Statutory Problem • Statute Creates Two Categories • §83.56(2)(a): Evict Immediately • §83.56(2)(b): Right to Cure (One Free Bite) • Need to Argue: Into Which Category Does Tim’s Conduct Fit?

42. Review Problem 7A Preliminary Points About Statute • Examples … that the TNT should not be given an opportunity to cure include, but are not limited to,destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. • Examples [that TNT should be given opportunity to cure] include, but are not limited to,activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.

43. Review Problem 7A Example of Common Statutory Problem • Statute Creates Two Categories; Into Which Category Does Tim’s Conduct Fit? • Common Types of Argument: (I) Literal: Withinlanguageof either (a) or (b)? (II) Comparison: More like items listed in (a) or (b)? (Characterization) (III) Policy: Should this behavior be sufficient for a landlord to evict without more? (Think about relevant interests of both Ldld & Tnt)

44. Review Problem 7A (I) Literal: Within language of either (a) or (b)? • Examples … that the TNT should not be given an opportunity to cure include, but are not limited to,destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance. • Examples [that TNT should be given opportunity to cure] include, but are not limited to,activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.

45. Review Problem 7A: Qs 1 & 2BISCAYNE(for L) & SHENANDOAH (for T) (II) Comparison: More like items listed in (a) or (b)? Characterization Exercise • … destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a sub-sequent or continued unreasonable disturbance. • … having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.